When are Constitutional Rights Non-Absolute? McCutcheon, Conflicts, and the Sufficiency Question

77 Pages Posted: 27 Mar 2015 Last revised: 18 Apr 2015

See all articles by Mark D. Rosen

Mark D. Rosen

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: March 25, 2015


The Supreme Court in McCutcheon v. FEC struck down the aggregate limits provision of the Bipartisan Campaign Reform Act, which capped the total amount of money donor could contribute to all candidates and political committees during a single election cycle. All Justices agreed the First Amendment right at issue was not absolute, but disagreed as to what purpose(s) could justify the right’s limitation. The plurality concluded the challenged provision did not further the only purpose — prevention of “quid pro quo corruption or its appearance” — they thought could justifiably restrict the right. Four dissenting Justices thought a broader range of governmental goals could justify the law’s restrictions on a First Amendment right, including “maintaining the integrity of our public governmental institutions.”

This Article asks a basic general question: What criteria appropriately determine what qualifies as a sufficiently important reason to limit a constitutional right? I call this the “Sufficiency Question.” The Sufficiency Question is not limited to the First Amendment, but applies generally insofar as virtually no constitutional rights are absolute under contemporary doctrine. For instance, most fundamental constitutional rights are protected by strict scrutiny, meaning that they can be regulated to achieve a “compelling governmental interest.” And many constitutional rights can be restricted for even less pressing reasons.

While courts and scholars have spent substantial time arguing that a particular policy does or does not constitute a compelling government interest for purposes of a specific constitutional right, virtually no attention has been given to the properties that justifiable rights-limiting interests must have. The first step to answering this question is understanding why constitutional rights are not absolute, but sometimes may be limited. To answer this, Part I identifies the classic arguments for “rights absolutism” and carefully analyzes Ronald Dworkin’s understanding of rights as trumps, what many believe to be the most important modern articulation of rights absolutism. Part I argues that Dworkin fails to provide an internally consistent account of rights absolutism, and in the end is not best understood as a rights absolutist. Moving beyond Dworkin, Part I then identifies three strong arguments against rights absolutism: rights absolutism (1) wrongly presumes rights cannot conflict, (2) mistakenly posits that rights should categorically trump all competing non-rights interests, and (3) is contrary to the widespread and longstanding practice in today’s constitutional democracies.

The proposition that constitutional rights are not absolute confounds many, and leads to such questions as: Does the conclusion that a constitutional right is not absolute reduce it to a mere policy interest, and in effect undermine what it means for something to be a constitutional right? Are constitutional rights endangered if they are non-absolute? To countermand these concerns, Part II identifies and critically evaluates six non-absolutist accounts of constitutional rights. Doing so both reinforces the undesirability of rights absolutism, and shows the meaningful role rights can play even if they are not absolute.

Part III argues that the same considerations identified in Parts I and II that make rights absolutism unattractive strongly suggest it is neither possible nor desirable to generate principled, a priori answers to the Sufficiency Question. But it is possible to generate what might be called a Sufficiency Methodology — a relatively thick framework that identifies the considerations that properly inform, and the institutions that properly participate in generating, answers to the Sufficiency Question. Applying the Sufficiency Methodology to McCutcheon, the Article identifies multiple deficiencies in the McCutcheon majority and isolates the empirical and normative factors that should have been considered in deciding the case.

Keywords: constitutional law, constitutional rights, First Amendment, election law, Supreme Court, McCutcheon v. FEC, sufficiency, rights absolutism

JEL Classification: K10, K19, K30, K39

Suggested Citation

Rosen, Mark D., When are Constitutional Rights Non-Absolute? McCutcheon, Conflicts, and the Sufficiency Question (March 25, 2015). William & Mary Law Review, Vol. 56, No. 1535, 2015, Chicago-Kent College of Law Research Paper No. 2015-06, Available at SSRN: https://ssrn.com/abstract=2585063

Mark D. Rosen (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

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